An EEO Perspective Robin Jamison DSN 338-7558 robin.jamison@eu.dodea.edu DODEA Europe EEO Contacts • A person must contact an EEO official within 45 days of the incident he or she believes is discriminatory. In DoDDS-Europe you must contact either: • Robin Jamison, DSN 338-7558 robin.jamison@eu.dodea.edu • William Suddeth, DSN 338-7561 william.suddeth@eu.dodea.edu Cell (49)162-234-2064 • DO NOT CONTACT A LOCAL BASE EEO OFFICE. THEY WILL NOT PROCESS EEO COMPLAINTS FOR DODDS-E EMPLOYEES. FURTHER, IT COULD RESULT IN YOUR CASE BEING DISMISSED. Basis For EEO Complaints • • • • • • • • • National Origin Age Disability Sex (to include pregnancy) Race Color Religion Genetic Information Reprisal for Prior Protected EEO Activity • EVERYONE, INCLUDING YOU, IS A MEMBER OF A PROTECTED CLASS! Employment Discrimination • When one distinguishes or differentiates between people on the basis of their protected class with respect to a term, condition, or privilege of employment. Disparate Treatment • This is by far the most common theory under which discrimination complaints are brought forward. The complainant essentially alleges that he or she was intentionally treated differently in connection with an employment-related matter because of a prohibited factor. Elements of Retaliation • There are three essential elements of a retaliation claim: • Participation in the EEO process or opposition to a discriminatory employment practice. • Adverse action. • Causal connection between the protected activity and the adverse action. Participation • What is EEO Participation? • Filed a complaint of discrimination. • Testified, assisted, or participated in an EEO proceeding, EEOC or federal court proceedings in which the statues enforced by EEOC were challenged. • Request for a reasonable accommodation. Opposition • The anti-retaliation provisions also make it unlawful to discriminate against an individual because s/he opposed any practice made unlawful under the employment discrimination statutes. • Examples: threatening to file a discrimination complaint; complaining to anyone at the workplace about alleged discrimination against oneself or others; union activity with an EEO component Adverse Actions/Casual Connection • Adverse actions need not qualify as “ultimate employment actions” or materially affect the terms or conditions of employment to constitute retaliation. (anti-retaliation provisions are exceptionally broad) • To establish unlawful retaliation, there must be proof that the respondent took an adverse action because the complainant engaged in protected activity. Role of the DMEO Office • We serve as a bridge between the employee and the leadership. We do not advocate for either side. • The DMEO Office puts forth considerable effort in resolving matters in dispute. • A complaint is resolved when disputants reach a mutual understanding of the issue(s) and agree on a mutually satisfactory outcome. What We Will Ask You • You have the burden of production (not proof) to articulate a legitimate, nondiscriminatory reason for your actions. • You don’t have to prove that you did not discriminate; you must explain the reason(s) for your action(s). • Your articulation must be sufficiently clear and specific to permit the complainant to respond and present rebuttal evidence. You Tell Me! • Luis is investigating a case of non-selection. Rod Piper claims that Arn Anderson did not select him for a position because of his race. He states that Arn did not select him because he, Rod, is African American. Arn, when asked to explain his reasons for not selecting Rod, said, “The selectee was selected due to his military experience and education and was also concerned that if the complainant were selected, it would give rise to a question of pre-selection.” • Has Arn Anderson met management’s burden in this instance? Hostile Work Environment • In determining whether a working environment is hostile, relevant factors include the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. A person must allege a set of facts which, if proven true, would indicate they have been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of his or her employment. The Standard With regard to discriminatory harassment by coworkers, an agency is liable if it knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. The adequacy of an agency's response depends heavily on the facts of the case. A Bad Day for Mike. • Mike a program analyst stated while attending a meeting of a large group of people concerning securing the environment for an upcoming bomb test, Manager Tom made a comment he believed was inappropriate and insensitive. Manager Tom’s said “I wouldn’t mind sending down one or two Mexican illegals in for this blast.” Mike asserted that most of the people in the room laughed and no manager indicated the comment was inappropriate. • Mike contacts the EEO officer and states he was subjected to a hostile work environment. Is Mike right? CASE BY CASE In assessing whether a hostile work environment exists, all of the circumstances must be considered, including the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; whether it was hostile or patently offensive; whether the alleged harasser was a co-worker or a supervisor. REASONABLE PERSON STANDARD Whether an objectively hostile or abusive work environment exists is based on whether a reasonable person in the complainant's circumstances would have found the alleged behavior to be hostile or abusive. The incidents must have been sufficiently severe and pervasive to alter the conditions of complainant's employment and create an abusive working environment. Hostile Work Environment • EEOC regulations are not to be used as a general civility code. Rather, they forbid only behavior so objectively offensive as to alter the conditions of the victim's employment. Title VII does not create a right to work in a pleasant environment; merely one that is free from illegal discrimination. What Would You Do? • Michelle comes to you and says she feels as if her co-workers are bullying her into quitting. She claims they have started rumors that she got her current position due to her mother’s personal friendship with the director. She relates that her co-workers often make sarcastic remarks about her “connections.” She tells you that she feels “shunned” and how her co-workers tell her to “look it up” or “shouldn’t you know that” if she has a question. She tells you that no one talks to her unless it is work related and even then the communication is terse and to the point. “I feel very isolated,” Michelle says. You have not witnessed any of this and this is the first time you have heard about it. • What would you do? First Responder to Harassment Allegation • • • • Listen without interruption (i.e. phone calls). Don’t formulate an opinion. Get it in writing. Go over the Anti-Harassment Policy with the employee. • Let your immediate supervisor know. • Contact DMEO if you need assistance. • Follow-up with the employee making the complaint. YOU SET THE TONE! • • • • • • Actively Listen. Be Sincere. Be Objective. Don’t Express an Opinion. Ask Open Ended Questions. Address complaints no matter how trivial they may seem to you at the time. • Keep the employee making the complaint informed. The Sensational Six! • • • • • • Who did it (and who else was there)? When did they do it? Where did it happen? What, specifically, did they do to you? How did they do it? Why did they do it (what is the background or what led up to the incident)? What Would You Do? • You overhear a teacher (Asian-American) call your secretary (Hispanic) "dumb," "incompetent," and tell her that she is just a secretary, a lowly GS-05, nothing to the office, and she intends to make the secretary's life miserable. Before leaving, she tells the secretary that she needs to go back to her home country because no one can understand what she says. What Would You Do? • A. You call both the secretary and the teacher into your office to get them to talk to one another and resolve their differences. • B. You document the time, place, and events that took place; call your MER for advice, and call the teacher into your office for a meeting concerning the comments you overheard. At the meeting you inform the teacher that discriminatory remarks will not be tolerated; that professionalism is expected at all times; and progressive disciplinary action will be taken if it ever happens again. • C. Since the secretary never came to you about the comments, you do nothing about it. • D. You believe that the teacher had been provoked because you agree that the secretary is dumb and therefore you take steps to terminate her. Sexual Harassment Allegations • Report all sexual harassment allegations to the Superintendent’s office immediately. • Sexual harassment allegations must be investigated by the Area or District office. • Please notify DMEO of all allegations of sexual harassment immediately. KEY POINT! • It is generally not advisable to reassign the employee making the complaint. Root Cause Analysis • Define the problem. • Collect evidence. • Identify the causal relationships associated with the defined problem. • Identify which causes if removed or changed will prevent recurrence. • Identify effective solutions that prevent recurrence, are within your control, meet your goals and objectives and do not cause other problems. Reasonable Accommodation • The best advice I can give; Call Me or William Suddeth! Mindtwister You and your AP have the unenviable task of counseling Billy Flawless for not following your instructions. Billy bristles at your criticism. “I don’t care what any of you toadies think,” Billy sneers. “I carry this school on my back. I’m the only reason people put their kids in this school.” When you attempt to direct the discussion to a more productive path, Billy stands up and interrupts, “I would love to listen to what you hypocrites have to say. But my moral compass dictates that I don’t need to speak to you miscreants anymore. And now I’ve not only lost my appetite, but I’ve lost my will to be in your presence. Thank you very much. ” Billy walks out of the office and leaves the building. The next day, Billy arrives with documentation from his doctor stating that he is suffering from a recognized mental disorder and is currently undergoing therapy and treatment. “Yesterday’s meeting really exacerbated my medical conditions,” Billy explains. “My doctor says I shouldn’t be placed in stressful situations. But I forgive you.” After Billy leaves your AP looks at you and says, “I don’t care. We still need to take disciplinary action.” What would you do? What You Do Not Have To Do. • In accommodating a disability, you are NOT required to: • Remove an essential function from a job; • Create a job for an employee; • Remove or reduce production requirements; • Excuse inappropriate or wrongful conduct, EVEN IF THE BAD CONDUCT IS CAUSED BY THE DISABILITY! Identifying The Problem. • What are the essential functions of the job? • What is the specific barrier or obstacle the employee identifies as hindering his/her ability to perform his/her job? • How can the barrier be overcome with an accommodation? Interactive Dialogue Is Required. Keep it non-adversarial. Here is an example of an initial response to an accommodation request: Dear Serwaa, Please complete the attached accommodation request form. This will help me assist you in identifying an effective accommodation that enables you to perform your assigned duties. We can then meet and discuss accommodation options. At this time, no further medical documentation is needed. Please return the accommodation request form to me as soon as possible so we can work together to identify an effective accommodation. Your Hero, William Some Accommodation Suggestions • Reallocating or redistributing the marginal functions of a job. • Modify the essential functions of a job (changing when or how they are done). • Modify the work schedule. • Acquisition or modification of equipment and devices. • Reassignment is the accommodation of last resort. • Permitting the use of accrued leave or unpaid leave. • Providing reserved parking. • Making facilities readily accessible to and usable by an individual. Brainteaser You are made aware by several colleagues that Wendy has cancer. You begin to notice Wendy appears lethargic and ill at times. Two weeks ago Wendy started using a cane and seems to have really slowed down. She often appears to be in pain. This disturbs you because you know Wendy to be a very active and enthusiastic person. Your AP approaches you about her concern for Wendy. “I’m not going to have Wendy coach volleyball this year so she has more time to recover each day. I’m also going to refrain from sending her TDY to the conference in Wiesbaden next month. She is really struggling and I’m worried about her.” What would you do? Who Must Raise The Issue? • The burden is squarely on the employee to raise the issues of disability and reasonable accommodation Effective Accommodation Required. • The agency is not required to provide the specific accommodation requested by the employee! The agency may provide another accommodation that will allow the employee to perform the essential functions of his job. The accommodation provided should be related to the disability and be assigned to assist the employee in performing the essential functions of his job. What Would You Do? You have assigned Linda, a teacher, to bus duty on Mondays, Wednesdays and Fridays. Linda tells you she recently had a hip replacement due to a degenerative disease. She says walking and standing for extended periods can be very difficult for her and she is not able to walk up and down the sidewalk each afternoon and remain standing for 30 minutes without a break. What would you do? Key Points – Reasonable Accommodations • • • • • • • • • • • • • • • You have resources at your disposal. Call or email William Suddeth or Robin Jamison. Contact Charles Montanez, DMEO Disability Program Manager, at DODEA HQ, 703-5883231, or by email at charles.montanez@hq.dodea.edu The Office of General Counsel can be contacted as well. Carla Eldred, DSN 334-2502, carla.eldred@eu.dodea.edu and Max Selz, DSN 334-2775, maxwell.selz@eu.dodea.edu Don’t excuse misconduct or performance deficiencies. It is the employee’s responsibility to ask for an accommodation. Keep the dialogue non-adversarial and collaborate with the employee to find an effective accommodation. Don’t unilaterally impose an accommodation on an employee. Don’t make an accommodation “off the books.” Document it with the appropriate forms. The purpose of a reasonable accommodation is to allow the employee to perform their essential duties, not remove those duties. Identify an effective accommodation. An employee is not entitled to the accommodation of their choice. Always provide the employee the “reasonable accommodation request” form. Seek guidance from DMEO or General Counsel before asking the employee to provide medical documentation. Seek guidance from General Counsel before requesting a fitness for duty exam. Reasonable Accommodation forms are at: http://www.dodea.edu/offices/eeo/forms.cfm?sid=6 KEY POINTS - HARASSMENT • • • • • • • • • • • • You have resources at your disposal. Call or email William Suddeth or Robin Jamison. Contact Phil Brown, LER Specialist, at DSN 338-7553 or by email at phil.brown@eu.dodea.edu The Office of General Counsel can be contacted as well. Carla Eldred, DSN 334-2502, carla.eldred@eu.dodea.edu and Max Selz, DSN 334-2775, maxwell.selz@eu.dodea.edu Listen to the employee. Get their complaint in writing. Don’t express an opinion. Go over the anti-harassment policy with the employees involved. Address harassment complaints right away. Follow-up with the employee and see if the situation has improved. Document your efforts. Report all sexual harassment allegations to the DSO and the DMEO office.